The Parentage / Surrogacy Project

Historically, the issue of whom the law should identify as a child’s legal parent(s) was, in most States, relatively settled. However, uncertainty has arisen in recent decades in some States as a result of a combination of changing family patterns and advances in medical science. This has given rise to a number of legal developments across States, including the law on parentage. Difficulties have sometimes arisen, however, because these developments have not been globally uniform. States’ approaches to issues such as paternity disestablishment (in light of DNA testing), assisted reproductive technologies and surrogacy arrangements have varied greatly, depending on the State’s cultural, political and social environment. As a result, there is, as yet, no international consensus on how to establish and contest legal parentage in these circumstances.

In an era of globalisation, when families cross borders with increasing frequency, these differences in States’ domestic laws can give rise to complex questions of private international law concerning the establishment, contestation and recognition of children’s legal parentage. These questions implicate children’s fundamental human rights (see, e.g., the UN Convention on the Rights of the Child, Arts 7 and 8).

In addition, a particularly "burning issue" has come to light in recent years: it is now well-known that surrogacy is a global business. This has created a number of challenges, especially when surrogacy arrangements involve parties in different countries. In particular, international surrogacy arrangements (ISAs) can often result in the difficulties described above concerning the establishment or recognition of the legal parentage of the child(ren) born as a result of the arrangement, sometimes rendering the child parentless. This can have far-reaching legal consequences for all involved: for example, it may affect the child's nationality, immigration status, the attribution of parental responsibility regarding the child or the identity of the individual(s) under a duty to financially maintain the child, etc. Difficulties may also arise because the parties involved in such an arrangement are vulnerable and at risk.

Pursuant to a mandate from its Members, the Permanent Bureau of the Hague Conference on Private International Law is currently studying the private international law issues being encountered in relation to the legal parentage of children, as well as in relation to international surrogacy arrangements more specifically.

Mandate

In 2015, the Council on General Affairs and Policy of the Hague Conference (the "Council") decided that an Experts' Group should be convened to explore the feasibility of advancing work in this area. The Council decided that the Experts' Group should be geographically representative and be composed in consultation with Members.

Meetings of the Experts’ Group have, thus far, taken place in February 2016, January/February 2017, February 2018, September 2018 and January/February 2019 (for more information, please refer to the Reports available below)

In March 2019, endorsed the continuation of the work in line with the latest report of the Experts’ Group and noted that most Experts recommended that future work focus on developing both:

a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and

a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from international surrogacy arrangements.

Council agreed that another meeting of the Experts’ Group should be convened and that the initial task of the Experts’ Group should be to propose provisions for inclusion in possible future instruments relating to the recognition of judicial decisions as set out in the Reports of the Experts’ Group.

Please note: this information is sought for research purposes only and a response will not always be received. Further, the Permanent Bureau is not able to provide any legal advice or assistance concerning individual cases.